Wabashaw v. Kenny et al
Filing
18
MEMORANDUM AND ORDER- Plaintiff may proceed in forma pauperis on appeal. Plaintiff shall pay an initial partial filing fee of $0.86 within 30 days unless an enlargement of time is granted in response to a written motion. After payment of the initial partial filing fee, Plaintiff's institution shall collect the additional monthly payments in the manner set forth in 28 U.S.C. § 1915(b)(2), quoted above, and shall forward those installments to the court. The clerk of the court is directed to send a copy of this order to the appropriate official at Plaintiff's institution and to the Eighth Circuit Court of Appeals. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party and as directed)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ELROY L. WABASHAW,
Plaintiff,
v.
BRIAN GAGE, et al.,
Defendants.
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4:14CV3213
MEMORANDUM
AND ORDER
This matter is before the court on Plaintiff’s Notice of Appeal (Filing No. 13).
The Prison Litigation Reform Act (“PLRA”) requires prisoner plaintiffs to pay the full
amount of the court’s $505.00 appellate filing fee by making monthly payments to the
court, even if the prisoner is proceeding in forma pauperis. 28 U.S.C. § 1915(b). The
PLRA “makes prisoners responsible for their filing fees the moment the prisoner
brings a civil action or files an appeal.” Jackson v. N.P. Dodge Realty Co., 173 F.
Supp. 2d 951, 952 (D. Neb. 2001) (citing In re Tyler, 110 F.3d 528, 529-30 (8th Cir.
1997)). The appellate filing fee is assessed when the district court receives the
prisoner’s notice of appeal. Henderson v. Norris, 129 F.3d 481, 485 (8th Cir. 1997).
Plaintiff must pay an initial partial filing fee in the amount of 20 percent of the
greater of Plaintiff’s average monthly account balance or average monthly deposits
for the six months preceding the filing of the notice of appeal. See 28 U.S.C.
§ 1915(b)(1). Accordingly, based on the records before the court, the initial partial
filing fee is $0.86, based on an average account balance of $4.31. (See Filing No. 17.)
In addition to the initial partial filing fee, Plaintiff must “make monthly
payments of 20 percent of the preceding month’s income credited to the prisoner’s
account.” 28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner’s
institution to collect the additional monthly payments and forward them to the court
as follows:
After payment of the initial partial filing fee, the prisoner shall be
required to make monthly payments of 20 percent of the preceding
month’s income credited to the prisoner’s account. The agency having
custody of the prisoner shall forward payments from the prisoner’s
account to the clerk of the court each time the amount in the account
exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b)(2). Therefore, after payment in full of the initial partial filing fee,
the remaining installments shall be collected pursuant to this procedure.
IT IS THEREFORE ORDERED that:
1.
Plaintiff may proceed in forma pauperis on appeal. Plaintiff shall pay an
initial partial filing fee of $0.86 within 30 days unless an enlargement of time is
granted in response to a written motion.
2.
After payment of the initial partial filing fee, Plaintiff’s institution shall
collect the additional monthly payments in the manner set forth in 28 U.S.C.
§ 1915(b)(2), quoted above, and shall forward those installments to the court.
3.
The clerk of the court is directed to send a copy of this order to the
appropriate official at Plaintiff’s institution and to the Eighth Circuit Court of
Appeals.
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DATED this 14th day of September, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.
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